Scott v. Steamboat Dick Keyes.

the exchange. The facts show that it was impossible to deliver the barge of the Dick Keyes immediately on the request being made. It was laden with a large quantity of oil-cake, shipped by its owner under an express agreement that, if necessary, it should remain four days on board after the arrival of the boat at New Orleans. The master of the Yorktown had an undoubted right to make such an agreement, and was in no way restricted from doing so by the contract for the exchange of barges. And, if it was of importance to the master of the Dick Keyes to have the possession of the barge before starting from New Orleans he should have waited long enough to have enabled the master of the Yorktown to have complied with the request for an exchange without "injury or loss." Under the agreement for the shipment of the oil-cake a heavy loss would have been incurred by unlading it and sending to a warehouse for safe-keeping. The facts, therefore, clearly warrant the conclusion that there could not have been an immediate delivery of the barge "without loss or injury;" and, therefore, that the master of the Yorktown did not violate the agreement.

If there had been unreasonable delay in unlading the barge, the Yorktown would have incurred liability in failing to deliver it when requested; but the evidence is that the boat and the barge were unloaded as promptly as circumstances would permit. It is clear the master of the Yorktown could have no interest in postponing the delivery of the barge unnecessarily; and there is no ground for the inference that he was influenced by any improper motive in not complying with the request for the exchange. Nor can it be presumed, from the facts, that the owners of the Dick Keyes sustained any injury from the non-delivery of the barge. The barge of the Yorktown was in the possession of the master of the Dick Keyes, and if that boat needed a barge when leaving New Orleans, the master had an undoubted right to retain and use the Yorktown's barge.

But, if it were conceded that the master of the Yorktown violated the agreement for the exchange of barges, does it

Scott v. Steamboat Dick Keyes.

follow that the owners of the Dick Keyes are entitled to recover the charter value of their barge from the date of the request for an exchange until they obtained possession, on the 10th of March following? This they claim in their libel, asserting the charter value of the barge to be twenty dollars a day. The proof is, that the charter value of such a barge was ten, fifteen, or twenty dollars a day. This, however, must necessarily depend on circumstances existing at the time. If the state of business was such that no profitable employment for a barge could be found, it is evident the charter value would be nothing, as no one, in that state of things, would hire it. The evidence, in this case, is altogether conclusive, that from the middle of January to the middle of February, 1855, the river business at New Orleans was unusually stagnant, and that freight for Cincinnati was exceedingly scarce, and when procurable was taken at very low rates. In the opinion of several witnesses of apparent candor and intelligence, connected with shippinghouses in New Orleans, there were a number of Cincinnati boats, during the time stated, that were unable to get freight, and that at the rates then paid there was no profit in carrying it. It is, therefore, a fair inference from the facts in evidence, that the owners of the Keyes sustained no loss by the failure of the master of the Yorktown to deliver the barge when requested. This inference is strongly supported by the fact that neither of the steamboats could find cargoes for their barges, and both therefore were left at Algiers. One witness, the mate of the Keyes, states in his deposition that this boat had no difficulty in procuring a cargo at the time referred to. His statement, however, is so clearly contradicted by other witnesses as to render it wholly unreliable.

I am satisfied, therefore, there is no basis for a decree in favor of the owners of the Dick Keyes for the charter value of their barge for the forty-seven days as claimed. But, as before noticed, the master of the Yorktown, after the Keyes left New Orleans, received on board the barge a large quan

Merchant & Humphrey v. Lewis.

tity of chalk, intending to take it to Cincinnati. For the reason before stated, the barge with its cargo was left at Algiers. It would seem clear, that for the time the barge was thus used by the master of the Yorktown for the storage of the chalk, a fair compensation must be allowed to the owners of the Keyes. There is no evidence in the case proving what the rate of compensation for this storage should be; and the amount involved is too small to justify the expense of a reference to a commissioner for the purpose of ascertaining it. The proctors for the parties can probably agree on this and thus avoid a reference.

The owners of the Keyes are also allowed for the expense of transferring the chalk to the Yorktown's barge, proved to have been $40.70. And the two items of $3 and $9, claimed by the owners of the Yorktown as the expense incurred by that boat in repairing the barges, are also allowed. A decree, on the basis indicated, may be entered.

(CIRCUIT COURT.)

MERCHANT AND HUMPHREY V. JAMES LEWIS.

Under section 14 of the patent act of 1836, which provides substantially that where a verdict is rendered for an infringement of a patent right, it shall be competent for the court to render judgment for any sum not exceeding three times the amount of the verdict, as the circumstances of the case may require, with costs, the right of the plaintiff for costs follows from a verdict in his favor for any amount of damage, whether nominal or compensatory, and without any reference to the action of the court in adjudging an increase of damages.

The discretion given to the court by said section was clearly to meet the case of a willful and aggravated violation of a patent right, in which the jury had failed to do full justice to the plaintiffs.

Lee & Fisher, for plaintiffs.

Corwin & Probasco, for defendant.

Merchant & Humphrey v. Lewis.

OPINION OF THE COURT:

This is an action to recover damages for an infringement of the exclusive right of the plaintiffs to the improved water-wheel, patented by Zebulon and Austin Parker. Upon the trial, the jury returned a verdict against the defendant for five dollars; and judgment has been entered on the verdict, including full costs. The defendant has filed a motion for a retaxation, on the ground that a verdict in a patent case for nominal damages does not entitle the plaintiff to costs.

The decision of the question presented on this motion depends wholly on the construction to be given to section 14 of the patent act of 1836, 5 U. S. 117, which provides in substance that where a verdict is rendered for an infringement of a patent right, it shall be competent for the court to render judgment for any sum not exceeding three times the amount of the verdict, as the circumstances of the case may require, with costs.

It is insisted by the counsel for the defendant, that under the section referred to, the plaintiffs can not recover costs, except in cases where the damages found by a jury have been trebled by the court. This would seem to be an exceedingly technical construction of the statute, not required by its phraseology, and obviously in conflict with its intention. The right of the plaintiff to costs follows from a verdict in his favor for any amount of damages, whether nominal or compensatory, and without any reference to the action of the court in adjudging an increase of damages. The discretion given to the court was clearly to meet the case of a willful and aggravated violation of a patent right, in which the jury had failed to do full justice to the plaintiff. In such a case costs are awarded; but there is nothing to negative the plaintiffs' right to recover them, if the court should refuse to exercise the discretion which the statute confers. A verdict for damages, whatever may be the amount, implies that the defendant has been a wrong-doer in the unauthorized use of the plaintiffs' exclusive right

Merchant & Humphrey v. Lewis.

under his patent; and such a verdict will carry costs. It is not a just inference, in a 'patent right case, that because nominal damages are found by the jury, the action is necessarily frivolous or vexatious. It happens, not unfrequently, that the owner of a patent is compelled, for the protection of his rights, to sue for an infringement, under circumstances in which he neither seeks to recover nor asserts a right to anything beyond mere nominal damages. This may be necessary for the establishment of his patent, and to prevent infringements. And, as by the legislation of Congress, the Circuit Courts of the United States have exclusive jurisdiction in patent cases, it would be a great hardship if he were subjected to the costs in thus asserting his legal rights.

It may also be remarked, in answer to the views urged by the defendant's counsel, that if sustainable it would result that costs against a defendant could not be recovered in any patent case where the verdict was less than five hundred dollars, unless the court, in its discretion, should treble the damages found by the jury. Such a construction would most injuriously affect the rights of many meritorious patentees, and would be in opposition to the spirit and design of the patent laws.

The case referred to by counsel, 4 Wash. C. C. 106, in which it was ruled that costs were not recoverable by the plaintiff in a patent case, unless the judgment amounted to five hundred dollars, arose under the patent act of 1793. By section 5 of that act the rule of damages was three times the price for which the thing patented was usually sold or licensed; but there was no provision giving the plaintiff a right to costs. The court held that as the statute did not give costs, they could not be recovered unless the judgment was for five hundred dollars or upward. Then, by the provision of section 20 of the judiciary act of 1789, the plaintiff was entitled to full costs.

The motion for a retaxation is therefore overruled.